New South Wales Supreme Court CITATION : DAMBERG v. DAMBERG [2001] NSWSC 203 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC No. 12244 of 1999 HEARING DATE(S) : 5 March 2001; 8 March 2001 JUDGMENT DATE : 8 March 2001 PARTIES : Oliver DAMBERG v. Wilfred DAMGERG JUDGMENT OF : Greg James J at 1 COUNSEL : Plaintiff: G. Casey (Sol.) Defendant: M.A. Bradford SOLICITORS : Plaintiff: Garden & Montgomerie Defendant: Campbell Paton Taylor CATCHWORDS : Application under Part 32A Supreme Court Rules - delay - unconstitutionality of cross-vesting to Family Court - "ineffective proceedings" - claim for costs not unarguable - delay curable - related proceedings in Court of Appeal - common questions of merits - decline dismissal on terms application made for Court of Appeal to dispose of outstanding issues. LEGISLATION CITED : Supreme Court Rules CASES CITED : Re Wakim ex parte McNally (1999) 73 ALJR 839 DECISION : Dismissal declined on terms IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 12244 of 1999 GREG JAMES, J. THURSDAY 8 MARCH 2001 OLIVER DAMBERG & ANOR v. WILFRED DAMBERG & ANOR JUDGMENT 1 HIS HONOUR: This is an application to show cause under Part 32A of the Supreme Court Rules. That Part, which was inserted in 1998, provides that proceedings in a division that have not been disposed of are liable to be dismissed by the court of its own motion unless a party satisfies the court that special circumstances exist that render it desirable that such an order should not be made. 2 The liability to dismissal arises if no party to the proceedings has for over one year taken any step in the proceedings. The effect of that dismissal is such that a party is not by that dismissal itself prevented from bringing fresh proceedings for the same relief, although such proceedings might be stayed to meet an antecedent liability for costs. 3 Upon the matter coming into the list in consequence of a notice to the parties from the court, it was mentioned in the duty list and stood over until today to enable the solicitor for the plaintiffs to provide evidence, since an objection was made, entirely appropriately, to his seeking to put the matters on which he wished to rely from the bar table. 4 By affidavit sworn 7 March 2001 and filed herein by leave, he recounts the sorry saga of litigation between the persons involved in the break-up of a family conducting certain rural enterprises. For the purpose of this decision, it is not necessary for me to detail that lengthy and sorry history. It is referred to in considerable length in the judgment of Purdy, J. in the Family Court delivered orally on 4 June 1999, and in the judgment of Austin, J. on summonses for declarations of right, which judgment was delivered on 7 December 1999. 5 These proceedings, in the Common Law Division, are brought in consequence of a dispute over whether Purdy, J., when adjudging the plaintiffs' entitled to certain sums of money against their parents, in proceedings cross vested into that court, did or did not make a costs order. If his Honour did make a costs order, that order was apparently made prior to the High Court striking out cross vesting in the well known decision of Re Wakim ex parte McNally (1999) 73 ALJR 839. If his Honour did not make a costs order, then by reason of the Federal Court (State Jurisdiction) Act 1999, an application for costs may be brought in this court. 6 The plaintiffs contend no order was made by his Honour. The defendants, however, contend that his Honour did make an order, in which case there is no power for this court to grant the relief the plaintiffs seek in these proceedings. Before me there is contest not only as to whether his Honour made an order for costs, but also, whether any such order might properly be made and whether the plaintiffs might have the benefit of it, as it is asserted that the mother had paid all the costs, and costs being an indemnity, so it is submitted, the plaintiffs became thereby disentitled. 7 There is on foot an appeal to the Court of Appeal from the substantive decision of Purdy, J., to which court such appeals must now go, in consequence of the collapse of the cross vesting regime, on which appeal the merits of his Honour's decision on the plaintiffs' entitlement to those sums of money I have referred to will be examined. There is no contest, so I am told, that the Court of Appeal has jurisdiction and power in respect of those matters. That court would have power to deal with a costs order if made and would, in any event, be considering questions crucial to the merits of any costs order. This circumstance raises a matter of convenience to which I will later refer. 8 It is said that, what I might call the merit arguments, impact upon the issue of whether or not cause might be shown under Part 32A. 9 I have been taken to Purdy, J.'s extensive judgment and to the references in it to the issue of costs, and particularly the references in it to the issue of costs that might have been ordered in favour of the plaintiffs or refused to the plaintiffs in those proceedings. It is submitted that it is simply unarguable relying on the tests applicable under Part 13 Rule 5 to contend that his Honour did not make an order disposing of any issue as to costs. 10 On a judgment of this kind it is inappropriate for me to deal with the arguments in detail as though I were resolving them. I, therefore, simply hold that I am not persuaded to the standard requisite for summary judgment on a striking out application that his Honour did deal with the question of costs. I hold that, even having regard to the order that his Honour made that "all other applications be dismissed", and notwithstanding that his Honour referred to the large cost bills, each of the husband and the wife, which might on an argument have included monies which had been paid by the wife in respect of the children's legal costs. As to that latter matter, I am also not persuaded to the standard to which I have referred that the claim for costs is not maintainable because of payment of the costs by the wife. Nonetheless, there remain other matters to consider, notably the delay. 11 The normal principles relating to dismissal for want of prosecution would enable a party to persevere with an action, notwithstanding delay, where that action is at least fairly arguable; where, as here, no real or substantial or incurable prejudice is occasioned to the other side, and where the delay is not simply a contumelious disregard of the Rules. It is, however, submitted on behalf of the defendants, that the principles underlying dismissal for want of prosecution are satisfied here since the plaintiffs' delay, albeit over not much more than a year, extended over more than a year, thus activating Part 32A. This, it is submitted, is or shows an analogy to, contumelious delay. Further, it is submitted, the proceedings are misconceived and the issues should be raised in the proceedings in the Court of Appeal to avoid multiplicity of proceedings. 12 It is put that in any event this action should be further held over until after the appeal, unless the question at issue here is disposed of in the appeal which is set down for 3 April, since the merits question will have to be dealt with by the Court of Appeal on the husband's appeal and it would be inappropriate in the circumstances for the merits to be dealt with by a single judge on an application of this kind in the meantime. However, it appears that these proceedings would have to remain on foot in any event, notwithstanding the appeal, since it is not conceded by the defendants that the Court of Appeal would be able to deal with all costs questions such as are raised in these proceedings, and in particular where it is contended that the Federal Court (State) Jurisdiction) Act 1999 does not permit that court to deal with the eventualities where Purdy, J. has not made an order for costs. 13 But it is submitted that the Court of Appeal may well have jurisdiction to deal with the question of costs if Purdy, J. has wrongly decided that question, so that an application for leave to that court to deal with the questions of substance will raise whether Purdy, J. made a costs order and whether it was in error. Thus, if the Court of Appeal should deal with the matter, there is some prospect of the necessary matters being determined to dispose of these issues. 14 Reference has already been made to the decision of Austin, J. It is submitted, albeit faintly, that the plaintiffs then brought proceedings not appropriately maintainable and are again in these proceedings acting in the same way. His Honour's judgment was most valuable. It set out the statutory regime, which I need not repeat here, in detailing the history of how the parties came here on this issue and the legislative context. It certainly was a proceeding which did not yield any advantage to either side by way of determination of any of the questions still remaining, but the judgment does not show the proceedings did not warrant being brought. 15 To return to the Rules, it is only where special circumstances exist that render it desirable that an order of dismissal should not be made, that the action should be permitted to continue under Part 32A, but that is a rule which has as its underlying concept, the idea that proceedings which are inactive without proper cause should be dismissed. 16 On the delay question, an extensive chronology extending to 5 November 1999 is set out as an annexure to the affidavit of Mr. Casey. There is no issue of fact with that chronology. It is common ground that since 5 November 1999 the appeal has been prosecuted with at least sufficient diligence so that it is not being struck out. That appeal, as I have said, already involves the determination of what may be the most substantial question so far as this action is concerned, that is, the merits of the children's action against the mother and father. 17 On the merit arguments, the first of the two other matters that are raised by the defendants, or at least the defendant father, viz, the mother's payment of costs is not so directly concerned with what at present is sought to be agitated in the Court of Appeal, but the second of those matters, viz, whether there was a costs order and whether, having regard to the merits, it should stand, at least, can conveniently be dealt with in conjunction with the existing subject matter of the appeal. If that course should be inconvenient to that court then the questions might be re-committed to this division at any time. 18 It does seem that if I am to hold that cause is shown, as I am minded to do, it will be necessary to put the plaintiffs upon terms that they approach the Court of Appeal to determine all such questions as might be proper and conveniently dealt with in conjunction with the existing appeal, and I have regard to an early proceeding seeking that such questions might be determined, since, as I have said, the appeal is set down for 3 April. Those questions might have little adverse impact on the convenient hearing of that appeal as presented constituted. But I recognise that that prospect might mean that it is too late to add the matters to what must be heard on that day. Nonetheless, it seems to me that if this action is to be maintained, at least that step of seeking to have the Court of Appeal deal with what it might be minded to add to the question already confided to it, is a step that should be taken to try to ameliorate the effects of the delay. 19 The plaintiffs also seek to file an amended summons. That amended summons is a further amended summons and seeks orders which at least were contemplated as appropriate alternatives by Austin, J. a year ago. The further amended summons cannot be said to have been brought on with undue speed. It cannot be said that the plaintiffs have really moved during the past year with any real expedition in these proceedings. Nonetheless, I am not persuaded that the proceedings are not fairly maintainable and fairly arguable. I am not persuaded the delay must mean from what I have said, and having regard to the delay referred to in Purdy, J.'s decision, Austin, J.'s decision and the annexures to the affidavit of Mr. Casey, noting as I do all this has come about in part because of the considerable degree of delay occasioned as a result of the collapse of the cross vesting system, I conclude special circumstances within the Rule have been shown and decline to dismiss the proceedings but on terms. 20 I direct the parties to bring in short minutes containing appropriate provision for the application by the plaintiffs to the Court of Appeal, and for the matter to stand out of the duty list but with liberty to restore. Such short minutes can be provided by facsimile to my chambers for the appropriate orders to be made, or alternatively, handed up in court tomorrow. 21 On the question of costs, the matter came into the duty list on Monday. It became apparent a substantial hearing was necessary. As I have said, objection was taken to the show cause application proceeding on information from the bar table, and the plaintiffs were required to put their case on affidavit, although that requirement was only made after the matter came into the list on Monday. 22 Before me today the matter has proceeded as though it were an application by the defendants to have the proceedings dismissed as unarguable or for want of prosecution, albeit they have the advantage that the plaintiffs bore the onus, as it were, as the moving party, to satisfy me that there were special circumstances that render it desirable that the plaintiffs' proceedings should not be dismissed. No substantive application has been brought by the defendants either for summary judgment or for dismissal for want of prosecution. On the other hand, they were perfectly entitled to insist that the plaintiffs should prove the proper basis on which the orders sought, that these proceedings not be dismissed, might be founded, but the defendants are hardly entitled, having failed in their endeavours to seek, as they do before me, that the plaintiffs pay their costs of allowing them to put arguments that they were not willing to put on their own applications. 23 On the other hand, as has been pointed out to me, the plaintiffs have been in default to the extent of triggering the time mechanism provided by Part 32A. It is said that the plaintiffs should not be entitled to claim against the defendants the costs of proving that which the plaintiffs would have had to prove anyway. As against that, to a certain extent the proceedings have been prolonged by the defendants' opposition, yet I am not of the view that that opposition is such as to entitle the plaintiff in the circumstances I have referred to to a substantive order for costs now against the defendants. 24 In my view, the proper order to be made at this stage is that costs should abide the result of the present proceedings and that the plaintiffs should have those costs only if they succeed; the defendants similarly. I therefore order that costs be costs in the cause. ******** Last Modified: 03/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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